Probate can be a lengthy process, usually taking up to a year to complete. In some cases, it can take several years, but this is unusual and typically only occurs when an estate is particularly large and complex. If your estate’s assets are primarily your home and the land it sits on, you have several options for making sure that your heirs can avoid the probate process altogether. This saves costs as well as time. For more information on any of the below options, consult a probate attorney.
Create a Living Trust
Real estate placed into a living trust does not have to go through probate. This method is the most commonly used when someone wishes to bequeath their real estate to heirs without the latter having to go through probate. There is more than one type of living trust but a revocable trust is usually chosen. Depending on your circumstances, however, you may benefit from a different type. An estate planning lawyer or probate attorney is an excellent resource to learn what type of living trust may be best for you. In a revocable trust, the person who creates it is called the grantor. Most grantors name themselves as the trustee– the person who manages the trust. For the period after your passing (or you become incapacitated) and until your estate is settled, you will need to designate a successor trustee to manage your assets, which in this case is your real estate (home). The title to the property will be transferred to the trust. When you create the trust, you will also designate your beneficiary or beneficiaries.
Throughout the remainder of your life, you have the legal right to full use of your home and property, and you also have the right to sell it. However, if you sell it, the funds from the sale will go to the trust. (Note that if you choose a revocable trust and you transfer ownership of the home to the trust, you can later change the trust and transfer the title back to you should you choose.)
Another method for ensuring that your heirs do not have to go through the cost and aggravation of probate is to pass on the real estate or home through a joint tenancy. This is done by adding the name of the individual you want to inherit the home to the property’s deed. With this method, the property will automatically go to them without having to go through probate. The law in your area of the country may dictate that each of the joint tenants must have an equal share of the ownership. So, if you have one joint tenant they will own 50% and you will own 50%. If you decide to share joint tenancy with two of your children, you will each own 33.3%. It’s important to understand that if you choose joint tenancy, the persons who share ownership with you, then their creditors have access to part of your home if they need to collect an unpaid debt.
To learn about additional options for avoiding probate for your real estate, speak with an estate planning lawyer.